United States v. Boulware ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4099
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALANDIS DANTE BOULWARE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:99-cr-00164)
Submitted: October 31, 2007 Decided: December 10, 2007
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Lawrence W. Hewitt, Jon P. Carroll, JAMES, MCELROY & DIEHL, P.A.,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Charlotte, North Carolina, Amy E. Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In January 2000, Alandis Dante Boulware pled guilty to
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2000). The court sentenced Boulware to fifty-
seven months in prison with a period of three years of supervised
release to follow. Boulware’s release commenced on January 16,
2004.
On November 7, 2006, Boulware’s supervised probation
officer filed a Petition for Warrant or Summons alleging various
supervised release violations. Specifically, the petition alleged
that Boulware: (1) tested positive for marijuana on January 23,
2004, and June 3, 2004; (2) admitted using marijuana on May 12,
2004; (3) was arrested on November 26, 2004, and charged with
misdemeanor driving while impaired, felony possession of marijuana,
and felony possession of cocaine; (4) was arrested on February 23,
2006, and charged with misdemeanor possession of marijuana up to
one-half ounce, felony possession of cocaine, and misdemeanor
possession of drug paraphernalia; and (5) pled guilty to
misdemeanor driving while impaired on September 29, 2005, and pled
guilty to felony possession of marijuana and felony possession of
cocaine on September 11, 2006. The petition requested that the
district court issue a warrant for Boulware’s arrest and revoke his
supervised release. The probation officer noted that the
violations were Grade B violations pursuant to U.S. Sentencing
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Guidelines Manual § 7B1.1(a)(2), and with Boulware’s criminal
history score of IV, the recommended sentencing guidelines range
was twelve to eighteen months in prison.
At the revocation hearing, the Government argued that
Boulware should receive the statutory maximum of two years in
prison. Boulware admitted that he had violated the terms of his
supervised release but argued that the district court should not
impose the maximum because many of Boulware’s violations arose from
the same course of conduct on November 26, 2004, he was currently
working to support his minor children and had retained a steady job
while on release, and he had already served a sixty-day active
state sentence. The court found that Boulware violated the terms
and conditions of his release and revoked the release. The court
then upwardly departed from the recommended guidelines range and
sentenced Boulware to twenty-four months in prison, less the sixty
days he had already served, for a total imprisonment term of
twenty-two months, with a fourteen-month term of supervised release
to follow. Boulware timely appeals his sentence, arguing that the
district court erred by upwardly departing from the advisory
guidelines range and imposing a plainly unreasonable sentence.
Finding no error, we affirm.*
*
The Government has conceded that the district court erred in
not offering an explanation of its reasons for imposing a sentence
above the guidelines range recommended by the applicable Policy
Statement. However, we are not bound to vacate the sentence solely
on the basis of the Government’s concession. See United States v.
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Boulware contends on appeal that the sentence imposed is
unreasonable because the district court did not adequately provide
reasons for the departure. Boulware’s twenty-two month sentence
falls within the range authorized by statute and is reviewable only
to determine if it is “plainly unreasonable” with regard to those
18 U.S.C. § 3553(a) (2000) factors applicable to supervised release
revocation sentences. United States v. Crudup, 461 F.3d 433, 437
(4th Cir. 2006). As purely advisory policy statements, the
sentencing ranges provided by USSG § 7B1.4 have never bound the
sentencing court. See United States v. Davis, 53 F.3d 638, 640
n.6, 642 (4th Cir. 1995). This court grants broad authority to the
district court to revoke its previous supervised release sentence
and impose a term of imprisonment up to the statutory maximum.
Crudup, 461 F.3d at 440 (citing United States v. Lewis, 424 F.3d
239, 244 (2d Cir. 2005)).
Although Boulware was sentenced above the guidelines
range, his sentence did not exceed the statutory maximum of two
years. Moreover, the district court sentenced Boulware after
hearing from Boulware, Boulware’s counsel, and the probation
officer. The court heard evidence that Boulware committed numerous
violations of the terms of his supervised release, and Boulware
admitted to these violations. While not explicitly stating its
reasons for departure in announcing the sentence, the district
Rodriguez, 433 F.3d 411, 414-15 n.6 (4th Cir. 2006).
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court had just heard from the Government about Boulware’s extensive
criminal history, including his prior convictions for involuntary
manslaughter and felon in possession of a firearm, his recidivism,
and his propensity to possess and use drugs. Moreover, the
presentence report outlined drug offenses stemming back to 1995.
The court expressed its concern over Boulware’s drug addiction and
the need to break the addiction, explaining that while incarcerated
Boulware would have less of an opportunity to obtain drugs, and
while on release he could be monitored for drug usage. Implicit in
the court’s sentence was the need for drug rehabilitation and
treatment and the need to deter Boulware from committing further
drug-related crimes.
In light of the evidence, the district did not impose a
plainly unreasonable sentence when it upwardly departed from the
guidelines range. Accordingly, we affirm Boulware’s sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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